5.  The applicant was born in 1974 and lives in Žetale.
7.  At 8.10 p.m. on 18 February 2001 the Podlehnik police patrol, consisting of two officers, J.Š. and G.K., was called to a bar, B. According to the Government the officers were told by customers and a waitress there that the applicant had been shouting at customers and threatening them with a gun. The officers were also told that a person they believed to be the applicant had headed to another bar, Š,. in the town of Čermožiše. 6.  At 8.30 p.m., the two police officers entered bar Š. They asked the owner of a white VW Golf to come forward. The applicant, who was the owner of the car in question and was in the bar that evening, approached the officers and followed them out to the car. The events which followed are in dispute between the parties. 7.  According to the applicant, on the way out the officers asked him where his gun was. The applicant replied that he had no gun. One officer requested the applicant to open the boot of the car. The applicant took the keys from the car to unlock the boot. At that point one of the officers hit him on the head. Both officers continued to beat the applicant until they knocked him down. They then kicked him all over his body. When the applicant started to get up, he received several punches to the stomach. The police officers then handcuffed him and took him to Podlehnik Police Station in a police car. In his criminal complaint (see paragraph 11 below), the applicant also alleged that he was hit twice in the face in the police car. At the police station one of the officers punched the applicant, who was still handcuffed, several times in the face.
8.  According to the Government, the police officers informed the applicant that he was charged with breach of the peace and possession of a weapon. The applicant then starting hitting his car. When he learned of the officers’ intention to search the car the applicant opened the boot and took out a metal bicycle wrench. Officer J.Š. asked the applicant to put the wrench down. The applicant refused, and lifted the wrench above his head. The officer then hit the applicant on the head, at which point the wrench fell to the ground. The applicant then attempted to run away. Officer J.Š. caught the applicant by the shirt. The applicant then fell to the ground, but got up again immediately. At that point he also told officer G.K. that he would kill his family. Not having been able to restrain the applicant, G.K., using professional skills, threw the applicant over his hip by gripping his neck. The officers then handcuffed the applicant, who was lying on the ground but still trying to resist, and searched him, as well as the car, but found no weapons. On suspicion that the applicant, who was believed to be under the influence of alcohol, would continue to commit offences, the officers ordered his detention at around 9.15 p.m. The officers took the applicant to Podlehnik Police Station, where the handcuffs were taken off him. The applicant was bleeding from the mouth.
9.  The applicant, who was complaining of pain, was taken to hospital by officers B.H. and M.B., who had taken over for the night shift. He remained hospitalised until 22 February 2001. According to the hospital reports, the applicant had suffered concussion, injury to the upper arm (fracture of the left humerus), excoriation, haematoma and contusion on the head, neck and thorax, and a rupture of the eardrum (perforation of tympanums). The applicant also submitted that two of his teeth were loose and one had been broken during the alleged ill-treatment. He continued outpatient treatment until 19 June 2001. The medical records noted that the results of the treatment were “satisfactory”.
10.  On 12 March 2011 the police lodged a criminal complaint of violent behaviour against the applicant. A bill of indictment was lodged by the Ptuj District Prosecutor, S.E., whereupon the Ptuj Local Court heard the applicant, as well as four witnesses. On 15 May 2006 the charges were reclassified to the criminal offence of endangering security. Since the proceedings concerning the latter offence could only have been conducted at the request of an aggrieved party, the court requested the presumed aggrieved party, G.H., to inform the authorities whether he wished to pursue proceedings. On 18 September 2006 the proceedings were discontinued, as G.H. refused to submit a request for them.
11.  On 28 March 2001 the applicant lodged a criminal complaint with the Ptuj District Prosecutor’s Office against unidentified officers, of aggravated bodily harm and violation of human dignity by abuse of authority or official position. The applicant supported his criminal complaint with hospital records and photographs of his injuries. He also proposed that A.K., who saw the incident, be examined.
12.  On 6 November 2001 the Ptuj District Prosecutor, S.E, dismissed the criminal complaint on the basis of the police report prepared by Maribor Police (to which Podlehnik Police Station was subordinate). The latter was based on official notes concerning interviews held by officer S.P from Podlehnik Police Station with officers J.Š., G.K., B.H. and M.B. It would appear that in the context of the police inquiry, statements were taken by an officer from Maribor Police from five persons who had been present in the two bars but had not witnessed the relevant events outside the bar. The police report noted that witness A.K. had not been questioned, as he was working in Austria. The public prosecutor found that the police officers, who were identified as J.Š. and G.K., had acted in accordance with the law. In the decision dismissing the applicant’s criminal complaint the public prosecutor found that the applicant had allegedly breached the peace in bar B., where he had threatened customers with a gun. Further to that allegation, which had been communicated to the police by a person from that bar, the two officers attempted to find the applicant. They entered bar Š. for that purpose. As regards the subsequent events, the public prosecutor found in her decision that the applicant had refused to cooperate with the officers and had taken a metal tool out of his car in an attempt to attack officer J.Š. She concluded that this, and the fact that the applicant had presumably been carrying a gun, justified the use of force and the injuries the applicant had sustained as a result. The applicant was not heard by the public prosecutor or involved in those proceedings in any way. The public prosecutor’s decision was served on his representative on 16 November 2001.
13.  On 22 November 2001 the applicant, acting as a subsidiary prosecutor represented by a lawyer, lodged a request with the Ptuj District Court for an investigation.
14.  On 24 January 2002 the two accused officers appeared before the investigating judge. Both of them refused to give statements. On the same day the investigating judge upheld the request for an investigation. The officers appealed against the decision. On 23 April 2002 their appeals were rejected by an interlocutory-proceedings panel, which found that the applicant’s criminal complaint, and in particular the medical records, gave rise to a reasonable suspicion that the offences had been committed.
15.  Further to the investigating judge’s request, the police informed her that no disciplinary proceedings had been instituted against the officers in question with respect to the alleged abuse of power.
16.  On 3 June 2002 the investigating judge heard evidence from the owner of bar B., who testified that she had seen the applicant with a gun in the bar that evening and that the applicant was known as an aggressive person.
17.  On 1 July 2002 the investigating judge heard the applicant. The applicant’s testimony essentially corresponded to the description of the arrest as provided in his application to the Court; however, before the investigating judge, he denied having been beaten up in the police car. The applicant maintained that he did not possess a gun and that that was why the police had not found one. He also stated that nobody had witnessed the arrest except A.K., a customer from bar Š. Lastly, the applicant stated that he had no interest in pursuing a pecuniary claim for compensation in these proceedings, because he was seeking damages in civil proceedings.
 18.  On the same day the investigating judge examined six witnesses: four from bar B. and two from bar Š. As regards the latter, a waitress testified that she had noticed nothing unusual that day and confirmed that the officers had entered the bar and asked the applicant to step outside with them. She had not witnessed the events outside the bar. A.K. testified that he had heard the applicant screaming outside and as he was leaving the bar had seen the applicant lying on the ground being beaten by the officers. He had observed the situation for only a few seconds, however, and had not been able to see the incident very well because it was night.
19.  On 25 September 2002 the investigating judge heard evidence from a forensic expert in general surgery, L.T. The latter stated, on the basis of the applicant’s medical records relating to his hospitalisation following the arrest in question, that the applicant had sustained at least five blows during the arrest: at least two to the head, one to the neck, one to the left side of his thorax and a hard blow to the left shoulder, and had possibly also been kicked while he was on the ground. He further specified that it was possible that the applicant’s face had been hit with an open hand, but powerful force would have had to be used to cause such an ear injury. As regards the injury to the upper arm, L.T. explained it could have been the result of a hard direct blow or kick, but could also have been caused during a professional hit or throw.
20.  On 27 January 2003 one of the customers from bar B., M.K., was examined. He denied seeing the applicant carrying a gun or noticing anything special that evening. After further questioning, M.K. admitted that he had known that the police had been called to the bar because of the applicant’s threatening customers with a gun. He indicated that he had not said that earlier during questioning because he was afraid of the applicant. However, M.K. later denied having had any previous negative experience with the applicant.
21.  On 12 February 2003 the applicant lodged an indictment against the two police officers. The officers lodged objections to the indictment. On 5 May 2006 the interlocutory proceeding panel rejected the objections, finding that the evidence collected so far supported a reasonable suspicion that the alleged acts had been committed.
22.  The Ptuj District Court, sitting as a panel, held hearings on 12 and 29 December 2006 and on 23 March, 13 April, 31 May, 22 and 31 August and 6 September 2007. It heard the accused officers, the applicant and a number of witnesses from the bars in question, as well as the officers who had taken over for the night shift. In addition, the court obtained a forensic report from an expert in general surgery, L.T., and a report by the Commission of the Faculty of Medicine prepared by V.S., an expert in traumatology and surgery, and L.Š, an expert in otorhinolaryngology. It also examined all three experts at the hearing. It furthermore obtained the opinion of an expert in fighting techniques, B.Z.
23.  At one of the hearings, expert L.T. testified that the rupture of the eardrum could only have been the consequence of a slap. The shoulder injury could have occurred as a result of a professional throw. He further explained that the haematoma on the right side of the applicant’s face could have been the result of a blow to the right cheekbone. The haematoma on the forehead was caused by a blow or a kick from the heel of a shoe while the applicant was either kneeling or lying down. Expert V.T. testified that the bruises on the applicant’s forehead and the right side of his face could have been caused by a blow from a closed fist. Furthermore, he said that the damage to the eye socket was very unlikely to have been caused by the pressure employed during the professional throw, but must have been the result of a direct blow with a fist or a kick to this area. Expert L.Š. testified that being thrown down, or pressure on the thorax, would be very unlikely to cause perforation of the eardrum. He further stated that in his opinion there had been two or more blows to the applicant’s face. Lastly, the expert in fighting techniques, B.Z., gave an opinion that the professional throw, which was called koshi guruma, and the blow with a hand, called oi tsuki jodan, were professionally justified during the applicant’s arrest.
24.  On 6 September 2007 the court convicted J.Š. and G.K. of the criminal offence of violation of human dignity by abuse of powers or official position under Article 270 of the Penal Code and sentenced them to imprisonment of four and three months respectively, suspended for two years. The court found that J.Š. and G.K. had been beating and kicking the applicant while he was lying on the ground after he had been thrown down by G.K. In addition, the court found that J.Š. had hit the applicant at least once on the right side of the face at Podlehnik Police Station. The officers were acquitted of the charges of aggravated bodily harm.
25.  In its judgment the Ptuj District Court, referring to the case of Matko v. Slovenia, (no. 43393/98, 2 November 2006), noted that it had reached the decision independently of the findings of the initial police inquiry and the public prosecutor’s decision, which had not complied with the requirement of an effective investigation. The court accepted the accused officers’ assertion that the applicant had attempted to attack them with a tool, which, however had not been seized. It also accepted the accused officers’ explanation that they had used a professional hit and a professional throw to overcome his resistance, which was lawful. It also considered that there was insufficient evidence that the applicant had been hit while he was in the car, an allegation that had, moreover not been made consistently. On the other hand the court found, on the basis of the evidence gathered in the criminal investigation and during the trial, in particular from the testimony of A.K. and the forensic medical reports, that the applicant had not been subjected only to the above-mentioned use of force. In particular, the court concluded, referring to the opinions of forensic experts, which it found to be consistent, that the applicant had received several blows to the head, not just one. As regards witness A.K., who had passed the scene of the incident when leaving the bar, the court noted that although A.K. had known the applicant, there was no close relationship between them which could call into question A.K.’s credibility as a witness. It further noted that A.K. had first stated during the investigation that he had seen the applicant being beaten up by the officers while he was lying on the ground, but that subsequently, at the hearing at which the two accused officers had been present in their uniforms, he had modified his statement by saying that he had seen one of them kick the applicant. The court, which took into account the evidence concerning the visibility at the scene of the incident and heard witnesses for the defence, who failed to undermine A.K.’s credibility, concluded that it was to be believed that A.K. had seen the applicant being kicked by at least one of the officers. It also rejected the accused officers’ assertion that, given the circumstances, they had been entitled to use even lethal force. It noted in this respect that the officers outnumbered the applicant, were in excellent physical condition and were trained in fighting techniques. In addition, they had been aware of the possibility that the applicant might be carrying a gun and could therefore have predicted his behaviour. The court concluded that the accused officers had ill-treated the applicant in breach of Article 3 of the Convention and Article 18 of the Slovenian Constitution and committed the criminal offence under Article 270 of the Penal Code. As regards the charges of aggravated bodily harm, the court found that it could not determine with the degree of certainty required in criminal cases whether the injuries with long-term consequences, namely, the fracture of the left humerus and rupture of the eardrum, had been caused intentionally by the unlawful use of force. Finally the court ordered the applicant to pay court fees in the amount of 400 euros (EUR).
26.  The applicant appealed on 5 November 2007. The officers also lodged appeals against the judgment in so far as it related to their conviction.
27.  On 27 February 2008, after deliberations, the Maribor Higher Court dismissed the applicant’s appeal and upheld the accused officers’ appeal. As regards the quashing of the conviction, the court found, in a reasoning of less than two pages, that the first-instance court had erred in establishing the facts. However, referring to sections 392 (5) and 394 (1) of the Criminal Procedure Act, it was of the opinion that a reassessment of the evidence could be done without a remittal of the case or a fresh hearing. The Maribor Higher Court then found that the defence statements of the accused officers were consistent and credible and should be fully followed and that the operation had not been a random one, as the applicant had a reputation as a dangerous person and had attacked the officers with a tool. The court found that the applicant’s statements had not been consistent and called into question the credibility of witness A.K. In this connection it rejected the reasoning given by the first-instance court, that the change in A.K.’s testimony had been understandable. It found that “the conduct of both accused officers, who had ultimately managed to get the applicant under control, had therefore proved to be correct and lawful”. The court concluded that “there was no evidence that the officers had committed the criminal offence concerned, but only certain indications on the basis of which the court could not conclude with all certainty that the accused had committed the alleged criminal offence”. It acquitted them of all the charges and ordered the applicant to pay court fees in the amount of 600 euros (EUR). The judgment was served on the applicant on 19 March 2008.
28.  By the Ptuj District Court’s decision of 5 May 2008 the applicant was ordered to pay EUR 14,572 for the costs and expenses of the proceedings, which was broken down to EUR 3,214 for procedural costs such as expert fees, and EUR 11,358 for the officers’ legal representation. Following an appeal by the applicant, the Ptuj District Court altered the decision concerning the costs and expenses so that the applicant was now required to pay EUR 2,441 for the procedural costs and EUR 413 for the costs relating to the preparation of G.K.’s appeal. The court found that the remaining costs of the legal representation of the officers had already been paid by the Ministry of the Interior during the trial, and reimbursement could therefore no longer be claimed by the officers.
29.  On 16 May 2008 the applicant requested the Supreme Prosecutor’s Office to lodge a request for protection of legality against the Maribor Higher Court’s judgment. On 15 September 2008 the Supreme Prosecutor’s Office rejected his request.
30.  On 19 May 2008 the applicant lodged a constitutional appeal in which he argued that the subsidiary prosecutor should have locus standi in proceedings before the Constitutional Court, and that he should have been able to lodge a request for protection of legality with the Supreme Court, as the public prosecutor had. He complained that the proceedings, in particular the judgment of the Maribor Higher Court, had been unfair and arbitrary. He submitted that the Maribor Higher Court’s judgment was biased, which could also be because the judge rapporteur was a former police officer. The applicant also referred to the case-law of the European Court of Human Rights, which had found that a subsidiary prosecution was not a proper remedy for the protection of human rights. Lastly, the applicant complained that he, unlike other parties in criminal proceedings, was not able to be exempted from payment of the costs of the proceedings.
31. On 14 December 2010 a panel of three judges of the Constitutional Court rejected the applicant’s constitutional appeal without further examination. It found that the applicant presented no reason to distinguish his case from case no. Up-285/97, in which it had taken the position that the aggrieved party could not lodge a constitutional appeal against acquittal. It moreover noted that the applicant’s case was also to be distinguished from cases nos. Up-555/03 and Up-827/04, which concerned lack of independent investigation into a death during police intervention (see paragraphs 50 and 51 below). As regards the complaint concerning the costs of the proceedings, the Constitutional Court rejected it is as manifestly ill-founded.
32.  On 27 December 2001 the applicant instituted civil proceedings against the State in the Ptuj District Court, seeking damages for the injuries he had sustained as a result of ill-treatment by the police.
33.  In the course of the proceedings the applicant modified his claim for non-pecuniary damages to 2,800,000 Slovenian tolars (SIT) (approximately EUR 11,700). The court heard several witnesses, including officers K.G. and J.Š., obtained a medical report from an expert, S.T. (see paragraphs 38 and 39 below), and took account of the evidence obtained in the criminal proceedings.
34.  The court delivered its judgment on 22 August 2006. It found that the officers had admitted to using only one “professional hit” and one “professional throw” against the applicant. They maintained that they had not used any other force against him and that all the injuries he had sustained had been caused by his passive resistance to arrest. Having regard to the medical opinions of experts S.T. and L.T., which confirmed that the applicant had sustained injuries as a result of several kicks or blows, the court concluded that the officers had “clearly overstepped their powers”. It continued by saying that there was no excuse for the behaviour of the police officers and that “there was nothing to be proud of in this under the rule of law”. The court further stated that “no officer in this country was authorised to kick a person who was lying on the ground, no matter how violent that person was”. It concluded that the applicant was responsible for 30% of the injuries and the State was responsible for the rest. The court noted that the State, through its agents, had not acted “diligently and within its powers” but had acted “negligently, irresponsibly and culpably and therefore should be liable for damages in accordance with section 154 č of the Civil Code”. The applicant was granted compensation for non-pecuniary damage in the amount of SIT 1,820,000 (approximately EUR 7,600).
37.  On 13 November 2007 the Maribor Higher Court upheld the first-instance court’s conclusion as regards the unlawfulness of the use of force against the applicant, finding that the police officers had “greatly overstepped their powers” and that the applicant had sustained injuries as a result. However, it allowed the State’s appeal in part, and reduced the amount of compensation awarded for damage suffered as a result of “fear” and “bodily pain” related to the injuries. The court reduced the award of damages to EUR 5,853.
38.  The report lists the following injuries sustained by the applicant on the day of the incident and their most probable cause:
- Lesions on the face: caused by a punch, kick or fall on to hard ground.
- Rupture of the right eardrum: normally caused by a slap.
- Several excoriations: caused by friction between the skin and an object.
- Fracture of the left humerus: likely to have been caused during a direct fall or by a blow to the shoulder.
39.  As regards the above-mentioned injuries, the forensic expert concluded that the applicant had received several hard blows to the right side of his face, one of which had resulted in the eardrum injury. He also considered it possible that the applicant had received a hard blow to his left shoulder. Most of the injuries could have been caused by a punch or a kick. As regards the remaining skin excoriations, these had been caused by a lighter application of force. 2.  Report of 16 February 2007 by the Commission of the Faculty of Medicine, Ljubljana, prepared in the context of the criminal proceedings by experts L.Š. and V.S.
40.  The report lists the following injuries sustained by the applicant on the day of the incident, with their most probable cause:
- Fracture of the left humerus (abruptio tuberculi maioris humeri sin): most likely caused by a fall on to hard ground.
- Concussion: caused by a punch, kick or fall on to hard ground.
- Excoriation on the neck and thorax: caused by a punch, kick or fall on to hard ground.
- Rupture of the right eardrum: caused by a punch or a slap.
- Lesions on the thorax, left shoulder, neck and head: caused by a punch, kick or fall on to hard ground.